Vormus v. Tennessee Coal, Iron & Railroad

COLEMAN, J.. — The defendant is a private corporation, engaged in the business of mining coal and iron, and owned and operated its railroad line and trains in promotion of its own private interest. The transportation of passengers was [329] no part of its business. Tbe plaintiff was a passenger on an excursion train of the Birmingham Mineral Railroad Company. On tbe arrival of tbe excursion train at Ensley, Alabama, tbe excursion train left tbe track of tbe Birmingham Mineral and entered upon tbe track of tbe defendant corporation, and proceeded upon this line until it reached tbe office of one McKenzie, a yard-master of tbe defendant. Here tb ey obtained permission from McKenzie to run tbe excursi on train upon tbe railway track of tbe defendant to certain designated points. While upon tbe track of tbe defendant under permission obtained from McKenzie tbe yardmaster, a train of tbe defendant, was discovered approaching on tbe same line from an opposite direction. A collision of tbe two trains, being imminent and apparently unavoidable, plaintiff attempted to escape by jumping from tbe excursion train, upon which be was at tbe time as a passenger, and sustained tbe injury complained of. There is no pretense that tbe employees of tbe defendant, (other than McKenzie) upon and operating tbe train of tbe defendant company bad any knowledge of tbe presence of tbe excursion train upon tbe track, or that tbe employees in charge of tbe defendant’s train were negligent. Tbe negligence alleged as tbe cause of tbe injury, is that of McKenzie tbe yard-master, in permitting tbe excursion train to proceed upon defendant’s track at a time when there was danger of a collision, and without notice. Tbe evidence tends to show, that defendant’s train was moving under orders given by McKenzie tbe yard-master, before be granted leave to tbe excursion train to use tbe track of tbe defendant, but that tbe giving of such order bad escaped bis recollection at tbe time. The evidence further shows, that before tbe excursion train bad proceeded one hundred yards tbe yard-master McKenzie calling to mind that be bad ordered the train of tbe defendant to proceed to Ensley, signaled tbe excursion train to stop and return. Tbe evidence is conflicting as to whether tbe officers in charge of tbe excursion train bad time after receiving tbe signal to return by tbe exercise of reasonable diligence, could have returned to a place of safety and avoided the danger. Tbe first question presented for consideration is, whether tbe excursion train was rightfully upon tbe defendant’s track, or was it there without legal authority, and as a trespasser, "We bold tbe uncontradicted evidence shows that tbe defendant was a private corporation organized for tbe purpose of making iron and mining coal, that in this business it owned and operated its line of railroads, which were used, exclusively for private purposes in [330] transporting its coal and ore from its mines to its furnances, and not as a common carrier, — that McKenzie as yard-master had general control of defendant’s tracks and the movement of the defendant’s trains thereon, but that he had no authority to authorize or permit the excursion train to go upon or over defendant’s tracks, and that the officers of defendant who were authorized to permit the use of its tracks by trains of other roads had given no authority in this instance, and no knowledge that the excursion train was thus using its tracks. It is a general principle of law and one which prevails in this State, that railroad corporations are liable for the erroneous advice and direction given by its agents in charge. — S. & N. Railroad Co. v. Huffman, 76 Ala. 498, but this principle in its application, is limited and qualified by the controlling principle that the agents are acting within the scope of their authority, or when dealing with the public or strangers who have no notice of the extent of their authority, are acting apparently within the scope of their authority. That McKenzie went beyond his authority in granting permission to the excursion train to use the track of the defendant corporation is clearly and indisputably establishd. Did the yard-master, McKenzie, having the right to control the tracks and trains of the defendant, for their own private purposes, act apparently within the scope of his authority, in such sort, as to bind the defendant for his negligence? We are clearly of opinion that he did not. It is not the law presumably known to all men, or to the courts judicially, that'a yard-master as such of one railroad, even when engaged in the transportation of passengers, has authority to lease or grant the use of its tracks for a time, or temporarily, for pay or gratuitously, to another railroad company. Much less, where the proof shows, as it does in this case, that the defendant diet not carry passengers and was not a common carrier, but was engaged in mining coal and making iron, and used its tracks for the sole purpose of transporting coal and ore in the prosecution of its private business. Our conclusion is that the excursion train was upon defendant’s tracks without lawful authority or permission, and that the defendant could not be held responsible for injuries resulting from the simple negligence of McKenzie or its employees, operating its train. The trial court left it to the jury to say, whether McKenzie’s conduct was so grossly negligent as to be the equivalent of wanton and willful or intentional wrong. Under the facts of this case, the charge was as favorable to the appellant as they had the right to demand. The evidence shows without controversy that the officers in [331] charge of and operating defendant’s train had no notice whatever that the excursion train was on the same track, and it is not pretended that they were guilty of any negligence whatever. It is further shown that McKenzie did not and could not communicate with them after giving the order to proceed with defendant’s train to Ensley. If McKenzie, after the excursion train started upon defendant’s track, did all in his power by signal and warning to have the excursion train return to a place of safety, in time for the excursion train to have returned safely,- and the accident was in fact the result of the negligence of the officers in charge of the excursion train, in not returning, and not in consequence of the wrong or neglect of McKenzie in the first instance in giving permission to use the track of the defendant, the defendant was not liable. The law is very clearly stated in the charge of the trial court, and on this phase of the evidence was favorable to the appellant. The principle of law applicable to the facts of this case, is quite different from that invoked by the appellant as declared in Ga. Pac. Railroad Co. v. Hughes, 87 Ala. 610; Elyton Land Co. v. Mingea, 89 Ala. 519; and others cited to the same effect. In the former case Hughes was a passenger on the East Lake Lummy Line. A collision occurred with the Georgia Pacific Railroad at a crossing of both roads. The defendant attempted to escape liability to plaintiff, upon the grounds that the East Lake Lummy Line was guilty of contributory negligence, and that such negligence was imputable to a passenger of the Lummy Line. The court repudiated the principle. The proof showed that plaintiff was a passenger rightfully on the Lummy Line. There was no question of trespass in the case. Both railroads were using their own right of way. If both were guilty of negligence in causing the injury to Hughes, he not being guilty of any negligence, might have a joint or separate cause of action against either or both roads, but that the negligence of the Lummy Line if guilty of any negligence could not be imputed to him as a passenger. This principle was followed in the Elyton Land Co. case v. Mingea, 89 Ala. supra. We adhere to the rule as declared in these cases, but it does not apply in the present case. To other cases cited by appellant, Ala. Gr. So. Railroad v. Yarborough, 83 Ala. 241; Wilton v. Mid. Railroad Co., 107 Mass. 108; and 2 Woods Railway Law, § 298, were cases, in which it was held, that the officers of the railroad were acting within the scope of their authority and for this reason the defendants were held liable for the negligence of their [332] agents. "We liave held that in the present case, McKenzie exceeded the scope of his authority. If this conclusion be correct, the authorities cited, by appellant, sustain our position. We are satisfied that we are correct in our conclusion. There is no error in the record, and the judgment of the trial court must be affirmed. Affirmed.